DDB 47 Turning Point
Disability Discrimination Bill - Evidence
to the Joint Committee
February 2004
Introduction
1. Turning Point is the UK's largest
social care charity providing services across a range of health
and disability issues including substance misuse, mental health
and learning disability. We have been providing mental health
services in England for the last 20 years and learning disability
services for the last 10 years. The range of services across both
sectors spans residential and day support and community services
including assertive outreach.
2. We have particular expertise
in working with people with complex needs and who are facing multiple
social challenges. For example, we support people with a learning
disability who have high support needs, including profound and
multiple learning disabilities, challenging behaviour or additional
mental health needs. The majority of our mental health services
are for people with severe and enduring mental illness, who may
have associated issues such as substance misuse, a learning disability,
homelessness or offending behaviour.
3. Turning Point welcomes
the publication of the Draft Disability Discrimination Bill and
the progress this represents for disabled people. We are also
pleased that the Bill is subject to consultation, but it is important
that legislation is introduced as soon as possible. We are, however,
disappointed that it took nearly two months for an accessible
version of the Bill to be published. The Bill is about preventing
discrimination, but the very way it was published was discriminatory.
Theme 1. Whether the draft bill's proposals
are necessary, workable and sufficient.
4. People with a learning disability
or mental health problem experience discrimination in many areas
of their lives. The discrimination they experience is often a
result of assumptions and prejudices people have about what it
means to have a mental health problem or learning disability.
The Disability Discrimination Bill is essential to working to
end this discrimination as it sets out a clear message that discrimination
is unacceptable and unlawful. It also provides a formal mechanism
for redress when discrimination occurs.
5. We are however concerned that
the Bill does not fully recognise:
- That the nature of discrimination
people with a learning disability or mental health problem face
is not only related to the physical environment but also to the
non-physical environment, attitudes and a lack of understanding.
- That although many issues facing
people with a learning disability and people with a mental health
problem are common and require the same solution, there are areas
where there are distinct differences that require distinct solutions.
- that people with complex needs,
for example someone with a co-existing learning disability and
mental health problem, face particular discrimination. People
with complex needs can be discriminated against because they do
not fit into the usual "categories". This can mean
that they are refused access to mainstream services and the support
they need, or are not considered or involved in policy development
or consultations. Also, often misunderstandings and presumptions
about quality of life can lead to access to support or treatment
services being refused.
Transport
6. The Bill should make clear that
accessible transport is not only about making the transport physically
accessible. The barriers people with a mental health problem
or learning disability face in accessing transport also relate
to how information is provided and also to attitudes and understanding
of staff. For example, some users of Turning Point's mental health
services have had to explain and justify their disabled "status"
when presenting their bus passes to bus drivers who have commented
that they do not 'look disabled'.
7. To make sure transport is accessible,
the Bill should make sure that information about travelling is,
as far as possible, accessible to people who may find conventional
information hard to understand due to their disability. This
should include clear and easy to understand signs and travel information.
Timetables, which are often complex and difficult should be produced
in larger font and should be as clear as possible. Audio and visual
announcements detailing where the bus or train will be stopping
next or changes to the route should be made. Disability awareness
training for transport staff is also important so that the impact
of different disabilities are better understood. This will mean
that transport staff are more sympathetic to requests for help
and have a more sophisticated approach to providing people with
information.
8. We are also disappointed that
the transport provisions do not yet cover shipping or aviation.
This is particularly important given the recent case when Easy
Jet initially refused to allow a group of young people with a
learning disability to fly without more supporters.
9. Turning Point therefore recommends
that training and clear guidance is giving about what sorts of
adaptations may be needed, including the examples given above,
to make sure that services and transport consider the non-physical
elements of accessibility.
Public Sector Duty (clause 4)
10. Clause 4 will make
it unlawful for a public authority to discriminate against a disabled
person in carrying out its functions.
11. We welcome these provisions
and the inclusion of the public authorities in the scope of the
Disability Discrimination Bill. The explanatory note to the Bill
says that the definition will include Government Departments,
local authorities, the police and other governmental organisations,
but it is not clear what other public authorities will be included.
It would be helpful if the Bill set out in a non-exhaustive list
the public authorities that are included. This is important so
there is clarity for disabled people about which bodies are covered.
12. We also think that
it is important that public authorities receive disability awareness
training so that they are aware of how they may discriminate against
a disabled person. It is important that this training is developed
with and by people with a disability so it reflects their experiences
of discrimination. It is particularly important that public authorities
understand that disabilities are not uniform and so a variety
of solutions are needed.
13. We are also concerned
that there is no anticipatory duty for public authorities. This
means that policies, practices and procedures will not have to
change in advance. Disabled people will have to experience discrimination
before being able to challenge the public authority to make a
reasonable adjustment to the function they are providing. We
would prefer an anticipatory duty to make reasonable adjustments,
as this would help minimise the need for disabled people to make
challenges and it has been shown to be more cost effective to
make anticipatory changes.
14. Turning Point recommends
that a non-exhaustive list of public authorities covered by the
Bill is published and that public authorities receive disability
awareness training. Turning Point also recommends that the Bill
include an anticipatory duty to make reasonable adjustments.
Private clubs - Clause 5
15. We welcome this provision
but because the detail is left to regulations it is not clear
what impact this will actually have. It is important that clubs
are accessible to ensure consistency across a range of premises
and they are also places where people's attitudes towards disabled
people may be challenged.
16. We are also concerned
that the Bill does not cover communal areas of privately owned
blocks of flats. This should be brought within the scope of
the Bill so that management committees cannot unreasonably refuse
consent to make adjustments to common parts of privately owned
premises.
Premises (clause 6)
17. Turning Point welcomes
this provision. Accessible and affordable housing is essential
for promoting social inclusion and for ensuring that people with
a learning disability or mental disorder have the same choices
over where they live. At the moment they don't- only 6% of people
with a learning disability have control over where they live and
with whom. We are however concerned that the Government is relying
on the Landlord and Tenant Act 1927 as a mechanism for ensuring
that Landlords do not unreasonably withhold consent when adaptations
are requested. We consider that this should be brought within
the scope of the Bill so that the DRC has powers to support and
take cases forward.
Public Functions (Clause
8)
18. Clause 8 makes it
a duty for public authorities to have due regard to the need to
eliminate unlawful discrimination against disabled people, the
need to eliminate unlawful harassment and the need to improve
equality of opportunity.
19. Turning
Point particularly welcomes this clause. Specifically, we are
pleased that there is a duty on public authorities to work to
eliminate unlawful harassment. This is very important for people
with a learning disability or mental health problem. We think
it is crucial that local authorities use the power in the Bill
to try to end the harassment of people with a learning disability
or mental health problem. Two thirds of people with a learning
disability say that they have been bullied more than once a month.
Many of these people say that it was one of their own neighbours
who bullied them. People with mental health problems are also
more likely to report having being bullied or experience violence
in the home. This is not right and working to end harassment should
be a priority for local authorities. This should include training
people with a learning disability or mental health problem. This
will help them know what harassment is, understand what their
rights are and what to do if they have been harassed. The police
and social services staff should also be trained so that they
take cases of harassment seriously and know what powers they can
use to stop it, such as Public Harassment Act 1997.
20. We are however disappointed
that there is no equivalent to the duty in the Race Relations
Amendment Act to promote good relations between persons of different
ethnic, racial and national groups. We consider that an equivalent
duty in the Disability Discrimination Bill would be beneficial
as otherwise public authorities may take its absence to mean that
the issues tackled in relation to race have no relevance for people
with a disability.
21. Turning Point recommends
that the ending of harassment of people with a learning disability
or mental health problem is made a priority for local authorities.
Employment
22. The Bill does not adequately
address the discrimination people with a mental health problem
or learning disability face when trying to get a job. Fewer than
1 in 10 people with a learning disability are in employment and
39% of adults of working age with a mental illness do not have
a job.
23. People with a mental health
problem often have to face stigma and misunderstanding when looking
for employment. Questions on application forms are often framed
retrospectively, for example: 'Have you ever….?' with no
time limit or opportunity to give details around the circumstances
such as reactive depression to a life-event. As well as being
discriminatory this can act as a major disincentive to applying
for jobs which reinforces the social exclusions people with mental
health problems have to face. Turning
Point therefore proposes that the Bill stipulates that confidential
non-essential information is not sought until after a job offer
and that disability related enquiries before a job is offered
may only be allowed in very limited and specific circumstances
24. In addition, Turning
Point recommends that the legislation should be extended to cover
those undertaking voluntary work in all forms. Voluntary work
is valid in its own right and is vital to building self-esteem,
social networks and community integration. For people with a
learning disability, voluntary work can be the first step to getting
paid employment. Similarly, for people with mental health problems
voluntary work can ease the transition back into employment in
incremental stages. Voluntary placements in 'real' work settings
are an essential step in this process - for example giving practice
at interview techniques and opportunities to develop their skills.
Theme 2. When the bill's
provisions should come into force.
25. We consider that the Bill's
provisions should come into force as soon as practicably possible.
We support the DRC in calling for all provisions to be in force
and fully implemented by the end of 2006. We also support the
DRC in calling for the Joint Committee to press for an earlier
date than 2025 for when all rail vehicles must be accessible.
Theme 3. What should be in the regulations,
orders and codes of practice proposed in the draft bill.
26. Much of the Bill is left to
regulations. This means that many of the details of the Bill
are unclear. The Government should publish draft regulations
early so the full detail of the Bill can be assessed and commented
on, but this should not delay progress. In addition it is also
important that codes are developed for consultation and that accessible
versions are provided so that consultation is properly inclusive.
The codes must set out the specific issues people with a mental
health problem, learning disability, or complex needs can face
and how services and public authorities should respond.
Theme 4. The adequacy of the enforcement
procedures.
27. The court system is
often too expensive to pursue claims in relation to goods and
services. This is clear when the difference in number of cases
pursued is examined. We therefore support the DRC's recommendation
that Part 3 of the DDA should be enforced through accessible tribunals
rather than through the courts. This is particularly important
for many people with disabilities who find the court system inaccessible,
intimidating and stressful.
28. As well as making
the court and Tribunal system more accessible, the Bill will extend
the remit of the DRC. Whilst this is welcome, the DRC is already
overloaded with calls. The Government must make sure that the
DRC is properly resourced to be able to deal with the increase
in calls and inquiries that it will no doubt receive.
Theme 5. Whether the draft bill achieves
the right balance between securing the rights of disabled people
and imposing duties and costs on the private and public sectors.
29. We consider that the balance
is consistent with the Government's policy of developing comprehensive
and enforceable civil rights for people with a disability.
Theme 6. The proposed
change to the definition of disability.
30. Turning Point welcomes
the extension of the definition of disability to include people
with MS, cancer and HIV, but does not believe that the draft Bill
sufficiently addresses the discrimination experienced by people
with mental health problems, both in relation to goods and services
and employment.
31. We bring the Committee's
attention to the current work of the Social Exclusion Unit. This
highlights the extensive discrimination faced by people with mental
health problems and the need to move more such people into work
since one third of people coming onto Incapacity Benefit cite
mental health problems as their main disability. At the same
time, numerous Department of Health policies and guidance stress
the importance of making mental health services more accessible
and appropriate. This can be helped by employing appropriately
qualified staff who also have experienced periods of mental ill
health. However, this will only happen if such workers have confidence
that legislation to tackle discrimination is in place.
32. We believe that three
aspects of the definition of disability are problematic:
a)The list of normal day-to-day
activities (in Schedule 1, section 4), predominantly concerns
physical disabilities - 'memory or ability to concentrate or understand'
being the most relevant to mental illness. However, case law
has shown that this description still potentially excludes many
with mental health problems, particularly people with schizophrenia
or eating disorders.
Turning Point recommends
that the list should be revised so that mental illness is more
explicitly and clearly covered.
b) The requirement that
impairment has a substantial and long-term adverse effect. This
clause is particularly problematic for people with depression.
A period of depression may be severe, require treatment in hospital,
and attract considerable stigma, but may only last 3 months, leaving
a person no protection under the Bill.
Turning Point recommends
that in the case of depression, the time period is shortened from
12 to 6 months.
c) We believe that the
requirement that mental illness is clinically well recognised
is discriminatory, since it is not required for physical conditions.
Therefore this requirement should be removed.
Theme 7. Whether the
range of "triggers" in the draft bill for requiring
reasonable adjustments are appropriate.
33. We are disappointed
that the Bill does not set out a coherent view on the level at
which a disabled person is entitled to a reasonable adjustment.
This means that the rights of individuals and the obligations
on service providers and public authorities will vary depending
on the sector and the service provided. We consider that it is
illogical that that the law sets different tests for what amounts
to discrimination in different sectors. It is also confusing.
34. Turning Point recommends
that a consistent approach is taken with harmonised triggers across
all the Disability Discrimination legislation. We recommend
that the trigger should be where there is a "substantial
disadvantage".
Theme 8. How the draft bill reflects
the Government's 2001 manifesto commitment to extend basic rights
and opportunities for disabled people.
35. The Bill certainly
reflects the Government's manifesto commitment, however more needs
to be done so that people with a disability have the same rights
and opportunities as people who do not have a disability.
36. For example, people
with a learning disability or mental health problem are more likely
to experience social exclusion than others. But, there is evidence
that Government programmes to tackle social exclusion have not
looked fully enough at disability or in engaging their communities.
We welcome the Social Exclusion Unit's consultation on mental
health and hope they will look at how social exclusion effects
people with other disabilities.
37. Mainstream policy
agendas need to take into account as a matter of course the issues
people with a learning disability or mental health problem face.
This is not happening yet. For example, the Choice initiative
by the Department of Health did not adequately deal with the problems
people with a learning disability or mental health problem face
in accessing services, let alone exercising choice.
38. Finally, Turning Point
considers that greater provision of independent advocacy is integral
to extending the basic rights and opportunities for disabled people.
This is because advocacy helps to ensure that people are not deprived
of their rights through lack of information, lack of resources
or lack of someone to speak up for them. Turning Point feels
that advocacy plays an essential role in helping people to have
a say in their lives and what services they want. We recommend
the greater use of advocacy support in general but particularly
when significant decisions need to be made, such as medical treatment,
where to live and perhaps decisions on work and benefits, or for
people with complex needs, who may not otherwise have networks
of support. This will go a long way in making sure people with
a learning disability or mental health problem are able to exercise
their rights and maximise their opportunities.
Finally, Turning Point
fully supports Mind's submission to the Committee and is part
of the consortium of learning disability groups (including Mencap
and Bild) that made a joint submission to the Committee.
Contact Details
For further information
please contact Zoe Wentworth or Caroline Hawkings, Policy Officers
for Learning Disability and Mental Health, respectively at Turning
Point on 020 7702 2300 or by e-mail at zoe.wentworth@turning-point.co.uk
or at caroline.hawkings@turning-point.co.uk
Valuing People
White Paper
Mencap
ONS
Mencap and Sainsbury Centre for Mental Health
There have only been 53 cases brought under part
3 of the Disability Discrimination Act which have to gone to court,
whereas there have been over 8,000 employment Tribunal claims.
For example,
the National Service Framework for Mental Health, Delivering Race
Equality: a framework for action; Choice, responsiveness and equity
in the NHS and social care
See also Advocating for Equality by Wendy Lewington
and Caroline Clipson for the Independent Advocacy Campaign.
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